One of the most common ways therapists are roped in to divorce cases is through writing what I call the “custody opinion letter.”
You know these letters. A client, or a client’s parent, asks you to write a letter to the court giving your opinion about which parent should have custody.
I have lost count of how many of these letters I’ve seen in my career. Hundreds, without a doubt.
These letters are problematic for a number of reasons.
In no small part, these letters are problematic because writing them very likely violates Utah therapists’ ethics rules. (I won’t go in to the chain citation for ethical rules, but what I’m saying is based on Utah licensure requirements, American Psychological Association ethics guidelines, and Association of Family and Conciliation Courts guidelines.)
Moreover, on the legal side, Utah therapists can only provide opinions regarding custody when they have been retained as an expert witness and have done the requisite data gathering. To do this type of expert work, you must be a custody evaluator conducting a custody evaluation. Individual therapy doesn’t allow the opportunity to do the type of data gathering necessary to act as a custody evaluator, so therapists cannot give fully informed opinions about custody.
(Note: an expert witness is someone who may testify regarding their expert opinion about a particular subject matter or situation. Almost all witnesses, including essentially all individual therapists, are fact witnesses. Fact witnesses are limited to testifying about facts as they know and have experienced them first-hand.)
Since it’s very likely unethical for a therapist to write a custody opinion letter, there is a very real possibility that such letters will be forwarded to Utah’s DOPL for investigation.
The court doesn’t forward these letters on to DOPL, but the parent on the losing side of the letter sure will — it happens all the time. That parent has a vested interest in hurting therapists who disagrees with his or her stance in litigation.
As if a DOPL investigation weren’t enough, another thing to think about is this: the court won’t read the letter or give it any weight because the court knows such letters are unethical and lack proper data support.
So, literally nothing good will come from writing a custody opinion letter if you’re an individual therapist.
Don’t write the letter.
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